Citation Nr: 18158736 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 16-45 397 DATE: December 18, 2018 ORDER Entitlement to rating in excess of 20 percent for diabetes mellitus is denied. FINDING OF FACT During the appeal, diabetes mellitus had not required regulation of activities. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for diabetes mellitus are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.119, Diagnostic Code (DC) 7913. REASONS AND BASES FOR FINDING AND CONCLUSION Evaluations Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A disability may require re evaluation in accordance with changes in a veteran’s condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Entitlement to a rating in excess of 20 percent for diabetes mellitus. The Veteran contends that his service connected diabetes is worse than the 20 percent evaluation currently assigned as he requires daily injectable insulin, restriction of diet, and regulation of activities. See June 2018 Appellate Brief, September 2016 Form 9, and April 2014 Notice of Disagreement. The Board concludes that the preponderance of the evidence is against an evaluation in excess of 20 percent for diabetes mellitus. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.119, DC 7913. Service connection for diabetes mellitus, type II, was established in an September 2008 rating decision-rated at 20 percent under DC 7913. Under DC 7913, a 20 percent rating is warranted for diabetes mellitus requiring insulin and restricted diet; or oral hypoglycemic agent and restricted diet; a 40 percent rating is warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities); a 60 percent rating is warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated; and a 100 percent rating is warranted for diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. 38 C.F.R. § 4.119, DC 7913. Per Note (1) to DC 7913, compensable complications of diabetes are rated separately unless they are part of the criteria used to support a 100 percent evaluation, while noncompensable complications are considered part of the diabetic process. To warrant a higher rating for diabetes mellitus itself, under DC 7913, the 40 percent criteria are conjunctive not disjunctive (i.e., there must be insulin dependence and restricted diet and regulation of activities). See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive “and” in a statutory provision meant that all of the conditions listed in the provision must be met); compare Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive “or” requirement must be met in order for an increased rating to be assigned). “Regulation of activities” is defined by DC 7913 as the “avoidance of strenuous occupational and recreational activities.” Medical evidence is required to show that occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360, 363-64 (2007) (citing 61 Fed. Reg. 20,440 (May 7, 1996)). The medical evidence does not establish that regulation of activities is required, and, therefore, the Veteran’s symptoms do not more nearly reflect the criteria for the next higher rating of 40 percent. 38 C.F.R. § 4.7. A review of the medical records dated during this appeal show no indication that a medical professional advised the Veteran to regulate his activities to control his diabetes. An October 2013 VA examination report reflects that the Veteran does not require regulation of activities as part of diabetes mellitus management. Also, it was noted that the Veteran visited his diabetic care provider less than two times a month for ketoacidosis/hypoglycemic reactions; and that he had no episodes of ketoacidosis/hypoglycemic reactions requiring hospitalization in the past 12 months. The examiner stated that diabetes did not impact the Veteran’s ability to work. A February 2015 VA medical record indicates that the Veteran gets regular exercise and does not require regulation of activities. The examiner noted that the Veteran complained of neuropathy and blisters. However, the examiner determined that while such conditions might limit activity, they did not meet the definition of regulation of activities. The medical evidence is highly probative and it does not suggest regulation of activities is required for treatment of diabetes mellitus. The Veteran’s statements that he has had to restrict his activities because he cannot walk due to neuropathy and blisters are not borne out by the record. The Board notes that the Veteran has not been diagnosed with neuropathy. In addition, a June 2016 VA podiatry consultation note indicates the Veteran denied a history of foot and ankle ulcerations. Further, even were the Board to accept the validity of the Veteran’s statements, he does not have the medical expertise to opine that his diabetes mellitus requires medical management by regulation of activities. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board has also considered whether a separate evaluation is warranted for any other associated disorder. Complications of diabetes include peripheral neuropathy and erectile dysfunction (ED). As stated above the Veteran does not have a diagnosis of peripheral neuropathy and ED is not on appeal before the Board at this time. The record does not establish the presence of any other compensably disabling condition associated with diabetes mellitus type II; as such, a separate disability evaluation is not warranted. The preponderance of the evidence is against the claim for a rating in excess of 20 percent for diabetes mellitus. Also, there is no basis to “stage” the rating as the evidence shows no distinct period where the disability exhibited symptoms that would warrant a different rating. See Fenderson v. West, 12 Vet. App. 119, 126 (2001); Hart v. Mansfield, 21 Vet. App. 505 (2007) Accordingly, the claim is denied. There is no doubt to resolve. 8 U.S.C.§ 5107(b). C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Gillian A. Flynn, Associate Counsel